The plaintiffs in the Branch Davidians' wrongful-death lawsuit against the government are fighting an attempt to depict Derek Lovelock as having helped set the fires that destroyed Mount Carmel.
Lovelock was one of nine Davidians to escape the blaze that led to the deaths of David Koresh and 75 followers.
The government accused Lovelock of implicating himself by refusing to read the alleged statements about lighting a fire picked up by surveillance devices inside Mount Carmel on April 19, 1993, according to Houston attorney Mike Caddell, lead plaintiffs attorney.
The government wants U.S. District Judge Walter S. Smith Jr. of Waco to interpret Lovelock's refusal as proof he made the statements, Caddell said.
"They just sprung this on the guy," Caddell said. "He was supposed to go back to England the next day. He didn't know what to do. He didn't have a criminal lawyer. He had to get advice from a civil attorney. He went ahead and gave his deposition, which some criminal lawyers have said was a stupid thing to do."
Government officials refused to comment on the pending matter.
In a motion asking Smith to block the government's legal strategy, Caddell accused the government of "ambushing" Lovelock.
"The government could have requested this sample through written discovery, giving Lovelock and his counsel a reasonable opportunity and time to consider and discuss it," Caddell wrote in his motion. "Instead, his civil attorney, who has no criminal law experience, was forced to recess the deposition, to hold a quick conference and provide some superficial advice to a frightened and confused client."
Caddell said the government's motive in requesting a voice sample from Lovelock was clear.
"It expected Lovelock to refuse, and his counsel to so advise him, because of the manner in which the request was made" Caddell wrote. "It then knew it could attempt to get a presumption against Lovelock and try to use that to hurt all of the Davidians' cases."
FBI officials have testified that the surveillance devices at Mount Carmel — delivered into the building through items given to the Davidians — picked up the voices of various Davidians saying such things as, "Spread the fuel," "Have you poured it yet?" "I already poured it," and "Light the fire."
In his motion, Caddell said Lovelock was not afraid because he made the statements heard in the government bug tapes.
"Rather, it was the government's approach to this request which frightened him," Caddell wrote. "Mr. Lovelock's previous experience with the U.S. government was the FBI's assaults and the siege at Mount Carmel. At his deposition was a representative of the same FBI. Whether the court finds Lovelock's fears and suspicions of the federal government reasonable, they are real to him."
The government should not be allowed to profit through its "discovery stunt," Caddell said in his motion.
"Ultimately, Mr. Lovelock is no different than the FBI agents who refused to take a polygraph exam," Caddell wrote. "Plaintiffs have not attempted to use their refusal to establish substantive points, and the court should not permit the government to do that with Mr. Lovelock."
Caddell said if the court accepts the government's presumption regarding Lovelock, he will be forced to call James Touhey, the government attorney who deposed Lovelock. Touhey would be asked if he read Lovelock his rights, Caddell said, and whether the matter was turned over to a U.S. attorney for evaluation of prosecution.
"The Supreme Court on Monday reaffirmed the Miranda decision," Caddell said. "They should have read the guy his rights if they wanted to do something like that."
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